The Odd Couple: How Two Wildly Different Congressmen Made Peace Over Privacy

On February 17, three members of Congress sent a concerned letter to Jon Leibowitz, chairman of the Federal Trade Commission. They were spurred by a report in The Wall Street Journaldetailing how Google had deceptively tracked users of Apple’s Safari web browser “without their consent or knowledge”—and in violation of a Safari setting designed to protect against such tracking. Among the signatories were the two co-chairs of the Bipartisan Congressional Privacy Caucus: Ed Markey, the liberal Congressman from Massachusetts, and his ideological opposite, the staunchly conservative Texas Congressman Joe Barton. On most issues, Markey says, he and Barton have disagreed for thirty years. “[But] when you move to privacy, it’s a different set of circumstances.” Is this odd couple the last, best hope for bipartisan cooperation in Congress?

Consumer privacy is an issue dear to earnest liberals, and Joe Barton is anything but. He was roundly condemned by Beltway establishmentarians (including TheWashington Post editorial board) when he began a controversial inquiry into the research of leading climate scientists in 2005. It was Barton who apologized to BP CEO Tony Hayward for an alleged White House “shakedown” during the Deepwater Horizon disaster. The Texan was one of the first members of Congress to join the Tea Party caucus, bragging, “I was Tea Party when the Tea Party wasn’t cool.”

Barton has also earned a reputation for publicity-seeking confrontations with Democrats. In 2007, he confronted Al Gore over An Inconvenient Truth during a congressional hearing. During a 2009 hearing, he challenged Energy Secretary Steven Chu to explain the presence of oil and gas near Alaska. When the Nobel-prizewinning scientist began a complex answer about shifting tectonic plates, Barton interrupted him. Wasn’t it obvious that the presence of oil meant Alaska was once much warmer? Chu countered that hundreds of millions of years of continental shifting had moved some oil to the area. Leaning his face on his right hand, his glasses low on his nose, Barton grinned at Chu. “So it just drifted up there?” Barton later posted the exchange on YouTube, titling it “Energy Secretary puzzled by simple question.”

With this kind of record, it’s a wonder that Barton has any friends on the other side of the aisle at all. (Even the sober, center-right Economist once made him the subject of a “profile in stupidity.”) But on consumer privacy, Markey, a liberal stalwart (he co-authored 2009’s failed cap-and-trade legislation), is Barton’s main ally. And their cooperation is not a PR stunt to gain bipartisan credibility at a time when Congress is widely despised for dysfunction and gridlock; it goes back more than a decade.

Markey dates one of their earliest collaborations to the late 1990s, when Congress was preparing the bill that would gut the Glass-Steagall Act, allowing for new kinds of information-sharing between parties like bankers and health insurers. As the Energy and Commerce Committee considered the bill, Markey offered an amendment to strengthen its privacy protections. “The room was packed,” Markey told me, “with dozens of banking, securities, and insurance industry lobbyists”—the very kinds of people who could benefit from knowing more about their customers. Wouldn’t a banker, when considering whether to give you a loan, love to know whether you’re at risk for expensive health conditions and the quality of your insurance? Barton, like his liberal colleague, wanted to prevent this kind of information-sharing. “Joe … agreed with me,” Markey recalled, and he offered his support. “My amendment was adopted in the Energy and Commerce Committee,” Markey triumphantly recounted. “A gasp went up in the audience of lobbyists when it passed.”

The consumer privacy experts with whom I spoke said Barton has a visceral appreciation for the value of privacy. “He’s really bothered by the idea that information that is grabbed for one purpose—say, a magazine subscription—is turned around and used for something else,” says ACLU legislative counsel Chris Calabrese. Barton is “just a really straightforward guy,” says Susan Grant, of the Consumer Federation of America. “There are lots of issues where he and Markey don’t agree, but they have a very good, direct, and strong relationship.” Today, Markey is pointed: “Privacy is not a partisan issue.” As Markey tells it, he and Barton are standing up for a traditional right. The real anomaly, he says, is not their relationship; it’s the allegedly anti-privacy stance of Silicon Valley gurus and Web futurists.

Barton sounded a similar note in an e-mail: “If our forefathers had known then what the internet and modern technology was going to be today, they would have put a right to privacy explicitly in the Constitution.” Barton conceded that there’s a conflict between certain business interests and pro-privacy endeavors: “That's why many Republicans aren’t as pro privacy as I am. They share the belief of many in the business community who look at this issue as a marketing opportunity.”

The story is enough to make bipartisanship hopefuls swoon: Two wildly different politicians, joined by a common conviction, overcoming the gaping partisan divide to work together on a crucial issue. But while Barton and Markey have been able to assemble coalitions around some privacy protections, they haven’t narrowed the profound gulfs that separate legislators. Even relatively good news—like the White House’s recent announcement of voluntary privacy guidelines—only underscores the fact that stronger legislative protections haven’t been passed yet. (For their parts, Markey and Barton praised the voluntary privacy framework, but insisted that stronger mandatory protections are still needed.) Markey himself illustrated that point, however unwittingly. That late ’90s bipartisan privacy amendment of which he so proudly spoke? It did pass out of the Commerce Committee, but it was rejected by the Banking Committee—and was nowhere to be found in the final bill.